Surajpal Singh v. The State of Uttar Pradesh

2 S.C.R. SUPREME COURT REPORTS 971 SURAJPAL SINGH _v._ THE STATE OF UTTAR PRADESH _December_ 7. #### (B. P. SINHA, c. J., s. K. DAS, .A. K. SARKAR, N. RAJAGOPALA AYYANGAR and J. R. MUDHOLKAR, JJ.) _Criminal Misconduct-Acquittal under one_ _category_ _of criminal_ _misconduct charged-Conviction under another category not_ _charged_ _-Legality of-Presumption, whether creates an offeme-Prevention_ _of Corruption Act, z947_ (II _of z947),_ _s._ _5, sub-ss._ (I), (z), (3). The appellant was a Head Constable attached to a _malkhana_ where articles seized in connection with excise offences were kept in deposit. The appellant was charged under s. 5(1)(c) read with s. 5(2), Prevention of Corruption Act, 1947, in that he had dishonestly or fraudulently misappropriated or otherwise converted to his use these articles; the charge further stated that a sum of Rs. 9,284-1-0 was recovered from him which was disproportionate to his known sources of income. He was acquitted of the charge under s. 5(1)(c) but was convicted under s. 5(2) on the ground that he had failed to account satisfactorily for the possession of Rs. 9,284-1-0 which was disproportionate to his known sources of income. _Held,_ that the conviction of the appellant under s. 5(2) of the Prevention of Corruption Act, 1947, was illegal. The only charge against the appellant was of criminal misconduct under s. 5(1)(c) of the Act for dishonestly or fraudulently misappropriating property entrusted to him and of this charge he could have been convicted by invoking the rule of presumption under s. 5(3). But since this was not done and he was acquitted of that charge, he could not be.convicted of criminal misconduct referred to in els. (a), (b) or (d) of s. 5(1) for which he had not been charged. The Courts below had proceeded wrongly on the footing as though sub-s. (2) or sub-s. (3) of s. 5 created .lln offence; the offence which was punishable under s. 5 (2) or which could be founded on the rule of presumption under s. 5(3) was the offence of criminal misconduct of one or more of the categories mentioned in els. (a) to (d) of sub-s. (1) of s. 5. _C. S. D. Swamy_ v. _The State,_ [1960] I S.C.R. 461, referred to. CRIMINAL APPELLATE JURISDIOTION: Criminal Appeal No. 169 of 1959. Appeal by special leave from the judgment and order dated March 27, 1958, of the Allahabad High - Court in Criminal Appeal No. 785of1955. _**z960**_ _**Surajpal**_ _**Singh**_ v. _**The State**_ _**of**_ _**Uttar**_ _**Pradesh**_ _S._ _K._ _Das_ _.T·_ 972 SUPREME COURT REPORTS [1961) _Nuruddin Ahmad_ and _Naunit Lal,_ for the appellant. _G._ _C._ _Mathur_ and _0. P. Lal,_ for the respondent. 1960. December 7. The Judgment of the Court was delivered by S. K. DAS, J.-This is an appeal by special leave from the judgment and order of the High Court of Judicature at Allahabad dated March 27, 1958, whereby the said High Court maintained the conviction of the appellant under s. 5(2) of the Prevention of Corruption Act, 1947 (2 of 1947) but reduced the sentence of four years' rigorous imprisonment passed on the appellant by the Special Judge, Kanpur, to two years' rigorous imprisonment. The short facts are these. The appellant Surajpal Singh was employed in the Police Department of the Uttar Pradesh Government. He started his service as a constable on a salary of Rs. 13 per month from August 1, 1930. In 1946 his pay was increased to Rs. 46 per month. He was appointed a Head con. stable on a salary of Rs. 50 per month in 1947. He officiated as a Sub-Inspector of Police sometime in 1948 and 1949 on a salary of Rs. 150 per month. On March 1, 1949, he was reverted to his post of Head constable. Between the dates February 27, 1951, and September 9, 1952, he was posted as a Head constable attached to the Sadar Malkhana, Kanpur. The charge against him was that in that capacity he dishonestly or fraudulently misappropriated or otherwise converted to his own use many articles, principally those seized in connection with excise offences kept in deposit in the said Malkhana. These articles included opium, bottles of liquor etc. The charge further stated that a sum of Rs. 9,284-1-0 was recovered on a search of his house on September 9 and 10, 1952 and this amount was disproportionate to the known sources of income of the appellant. There was an allegation by the prosecution that the acts of dishonest misappropriation etc. were committed by the appellant in .conspiracy with two other persons called Bhagawat Smgh and Gulab Singh. Therefore, the charges against the ## ' 2 S.C.R. SUPREME COURT R.EPORTS 973 appellant were (1) for the offence of conspiracy under _-x960_ _ s. 120B of the Indian Penal Code; (2) for the offence _surajpal_ _Singh_ under s. 5(1Xc) of the Prevention of Corruption Act, _v._ 1947, for the acts of dishonest misappropriation or _The State of_ user, read with s. 5(2) of the said Act; and (3) for an _Uttar Pradesh_ offence under s. 465 of . the Indian Penal Code in ~~D~~ respect Of a particular entry said to have been forged in the Register of Properties kept in the Sadar Malkhana. The learned Special Judge who tried the appellant Bhagawat Singh and Guiab Singh recorded an order of acquittal in respect of the latter two persons. As to the appellant, he was also acquitted of all the charges except the charge under s. 5(2) of the Prevention of Corruption Act. On this charge tlie lea.riled Special Judge recorded an order of conviction, but this was based on the sole ground that the appellant had failed to account satisfactorily for the possession of Rs. 9,284-1-0 which, a.cc0rding to the finding of the learned Special Judge, was disproportionate to the known ###### sources of income of the appellant. It should be noted here that the learned Special Judge held the appellant not guilty of the various acts of dishonest misappropriation or user alleged against him in respect of the properties kept in the Sadar Malkh~na~ In his appeal to the High Court the appellant urged various grounds, one of which was that he c<;mld not be .convicted on the rule of presumption la.id down in sub-s. (3) of s. 5 of the Prevention of Corruption Act, 1947, when on the only charge of criminal misconduct alleged under s. 5(l)(c) of the said Act he had been found not guilty. The High Court repelled this contention and upheld the conviction of the appellant but reduced the sentence. The principal question before us is whether in the circumstances of this case, the conviction of the appellant on the charge under sub-s. (2) of s. 5 of the Prevention of Corruption Act, 1947, by invoking the· rule of presumption as laid down .in sub-s. (3) of that section, is correct. ##### It is convenient to read here s. 5 of the Prevention ia3 _z960_ _**Sutajpal**_ _**Singh**_ 974 SUPREME COURT REPORTS [1961] of Corruption Act, 1947, in so far as it is relevant for our purpose. v. _**The**_ _**State**_ _**of**_ _**Uttar**_ _**Pradesh**_ "S. 5(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty( a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Indian Penal Code, or (b) if he habitually accepts or olltains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any 'connection with the official functions of himself or of any public servant to whom he is subordinate, or· from any person whom he knows to be interested in or related to the person so concerned, or (c) if he dishonestly or fraudulently misappropriated or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. (2) Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine: Provided that the Court may, for any special reasons recorded in writing, impose a sentence of imprisonment bf less than one year. (2A) ........................................................... . (3) In any trial of an offence punishable under sub-section (2) the fa.ct that the accused person or any S. _K._ _Das_ _J._ ###### '· ##### • 2 S.C.R. SUPREME COURT REPORTS 975 other person on his behalf is in possession, for which _I9_ _[60 ]_ the accused person cannot satisfactorily account, • - of _5_ _ura; a_ _·p-l_ _s· ing,._, pecuniary resources or property d1sproport1onate to v. his known sources of income may be proved, and on _The State_ _of_ such proof the court shall presume, unless the con- _Uttar_ _Pradesh_ - trary is proved, that the accused person is guilty of criminal misconduct in the discharge of his offieial _s. K._ _Das_ _J._ duty and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption." Now, learned Counsel for the appellant has put his argument on the principal question in the following way: he has submitted that he is not in a position in an appeal by special leave to go behind tihe finding of fa.ct arrived at by the courts below. Th~ appellant, it appears, gave some explanation with regard to the possession of Rs. 9,284-1-0. That explanation was not, however, accepted by the courts below. Learne"d Counsel has submitted that he does not wish t~ go behind that finding of fact. He has submitted, however, that the scheme of s. 5 of the Prevention of Corruption Act, 1947 is this: sub-s. (1) defines the offence of criminal misconduct in the discharge· of his duties by a public servant; the offence can be one or more of four c~tegories mentioned in els. (a), (b), (c) and ( d): sub-s. (2) is the penal sectiop. which states the punishment for the offence of criminal misconduct; and sub-s. (3) lays down a rule of presumption and states that no conviction for the offence shall be invalid by reason only that it is based solely on such presumption. Learned Counsel has pointed out, rightly in our opinion, that the charge against the appellant in the present case referred only to criminal misconduct in the discharge of his duty by a public servant of the nature mentioned in cl. (c) of sub-a. (1). In other words, the charge against the appellant was that he had dishonestly or fraudulently misappropriated or otherwise converted for his own use property entrusted to him etc. It was open to.the learned Special Judge to have convicted the appella~t of that offence by invoking the rule of presumption laid.down in sub-s. (3). He did not, however, do so. On the 976 SUPREME COURT REPORTS [1961) _r9_ _[6]_ _•_ contrary, he acquitted the appellant on that charge. _S_ _·p_ 1 _5 ._ _h_ Therefore, learned Counsel has submitted that by _ura; a_ _sng_ 11" - ·d h - 1 f v. ca mg m a1 t e ru e o presumption laid down in _Th•_ _State_ _of_ sub-s. (3), the appellant could not be found guilty of _Utt••_ _Pradesh_ any other type of criminal misconduct referred to in els. (a.), (b) or (d) of sub-s. (1) in respect of which there _5· K. Das_ _f._ was no charge against the appellant. We consider that the above argument of learned Counsel for the a. ppellant is correct and must be accepted. This Court pointed out in _C._ _S._ _D._ _Swamy_ v. _The State(')_ that sub-s. (3) of s. 5 of the Prevention of Corruption Act, 194 7 does not create a. new offence but only lays down a. rule of evidence which empowers the Court to presume the guilt of the accused in certain circumstances, contrary to the well known principle of Criminal law that the burden of proof is always on the prosecution and never shifts on to the accused person. In _Swamy's_ _case_ there were charges for the offence of criminal misconduct under two heads, cl. (a) and cl. (d). The trial court held the aecused person in that case not guilty of the offence under cl. (a} but guilty of the offence under cl. (d) by invoking the rule of presumption laid down in sub-s. (3) of s. 5. The distinction between that case and the case under our consideration is this: in _Swamy's case_ there were two charges either of which could be founded on the rule of presumption laid down in sub-s. (3); but in our case there is only one charge of criminal misconduct of which the appellant has been acquitted; therefore, there is no other charge which can be founded on the rule of presumption referred to in sub-s. (3). This is the difficulty with which the respondent is faced in the present case. It appears to us that the learned Special Judge and the High Court proceeded wrongly on the footing as though sub-s; (2) or sub-s. (3) of s. 5 of the Act creates an offence. The offence which is punished under sub;s, (2) or can be founded on the rule of presumption la.id down in sub-s. (3) must be the offence of criminal misconduct of one or more of ###### the categories mentioned in els. (a.) io (d) of sub-s. (1). In the case before us the only category which was 11.lleged against the appellant was that of category (o), #### • ## • ### • (1) [1¢<>] 1 S.C.R. 461, 2 S.C.R. SUPREME COURT REPORTS 977 namely, dishonest or traudulent misappropriation etc. _z96o_ ### That charge having failed; there was no other charge 5 .p;- 5 .,. which could be founded on the rule of presumption _ura;_ :. _sng_ laid down in sub-a. (3). _The_ _State_ _of_ Learned Counsel for the respondent State has con- _Uttar Pradesh_ tended before us that it was open to the appellate Court to affirm the conviction of the appellant under _s._ _K._ _Das_ _J._ sub-a. (2) of s. 5 by holding him guilty of the offence of criminal misconduct of the category mentioned in cl. (a) or cl. (d) of sub-a. (1). We are unable to accept this contention as correct. The prosecution never alleged that the sum of Rs. 9,284-1-0 was the result of ·the appellant habitually accepting or obtaining illegal gratification etc. The prosecution case was that the sum of Rs. 9,284-1-0 was the result of the dishonest user of property which was entrusted with the appellant. It is not open to the appellate Court to affirm the conviction ·of the appellant on an entirely new case never suggested against the appellant at any ###### earlier stage. It is unfortunate that in this case the courts below did not choose to rely on the rule of presumptitm la.id down in sub-s. (3) with reference to the charge under cl. (c) of sub-a. (1) of s. 5. But that misfortune cannot now be repaired by evolving out of a vacuum as it were a new case against the appellant based on cl. (a.) or cl. (d) of sub-s. (1) of s. 5 in support of which no facts were ever alleged or' suggested .. For the reasons· given above, we allow this appeal a.nd set aside the conviction and sentence passed against the appellant. _Appeal_ _allowed ._ # •